Will Trump Succeed in ProsecutingAndrew McCabe?

The Justice Department will soon decide whether to charge the former deputy F.B.I. director.

By Quinta Jurecic

Ms. Jurecic is the managing editor of Lawfare.

Aug. 28, 2019

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Andrew McCabe, then the acting director of the F.B.I., during a Senate Intelligence Committee hearing on Capitol Hill in June 2017.CreditCreditAlex Brandon/Associated Press

The Justice Department is close to reaching a decision on whether or not to prosecute the former deputy F.B.I. director Andrew McCabe, The Times reported on Monday. This news means either that the country is nearing the end of the slow-motion drama of Mr. McCabe’s public battle with the Trump administration over possible charges — or that the drama is just beginning.

Mr. McCabe gained prominence when he took over as director of the F.B.I. following President Trump’s firing of James Comey. In March 2018, Mr. McCabe was also fired — the day before he was set to formally retire. The Justice Department’s stated reason for his dismissal was a finding by the department’s internal investigators that he had misled them during a probe into communications to The Wall Street Journal authorized by Mr. McCabe in 2016. But Mr. McCabe, and his lawyers, allege that the firing was an act of political retaliation by the president.

Now the Justice Department is reportedly considering charges that would focus on the same conduct for which Mr. McCabe was dismissed — but rather than accusing the former official of misleading investigators (what the F.B.I. calls a “lack of candor”), under the relevant law, prosecutors would have to build a case that Mr. McCabe intentionally lied.

The distinction may seem minor, but it’s significant. To find lack of candor in an internal probe, investigators have only to decide among themselves that an official dissembled or didn’t give a complete answer. In a prosecution for lying to investigators, prosecutors must convince a jury beyond a reasonable doubt not only that the defendant lied, but also that the defendant knew he was lying. This is a much higher bar to clear.

For this reason, it’s surprising that the Justice Department may be pressing forward with charges against Mr. McCabe. In fact, the case appears to be sufficiently contentious that, according to The Times, at least one prosecutor has left the department over it, and one key witness has already given grand jury testimony helpful to Mr. McCabe’s defense.

Prosecutors may yet decide not to bring charges. If they do charge him, perhaps there is some damning additional evidence against Mr. McCabe beyond what’s on the public record. But on the basis of publicly available information alone, any prosecution would be, to say the least, puzzling — and would take place in the president’s long shadow.

If the case does go to trial, Mr. McCabe’s defense team would have the chance to request information regarding what role Mr. Trump and the White House might have played in the decision to seek an indictment. That material might be damning, or it might show nothing at all. Either way, though, it is impossible to completely wipe away the doubt about the integrity of the case against Mr. McCabe. Even if the president said nothing in private to indicate he was pushing for his perceived enemy’s prosecution, he has said plenty in public; even if he has given no direct instructions, he has made clear that he expects the Justice Department to act as his fixer.

In seeking to leverage the power of the state against his enemies, the president appears to be acting out what he believes his enemies have already done to him — he has, after all, blamed Mr. McCabe in part for the “Russia hoax.” This is a vicious cycle. Even if Mr. Trump’s actions toward Mr. McCabe did not go beyond what he’s said in public, he’s made it impossible for even his political opponents to trust the institutions that he believed from the start were untrustworthy. The poison is already in the water.

Another high-profile case. While prosecutors mull charges against Mr. McCabe, the trial of the former White House counsel to President Obama Gregory B. Craig — on charges involving alleged lies regarding his failure to register as a foreign agent for his work with a future campaign manager for Mr. Trump, Paul Manafort — offers a window into the halls of power, Sharon LaFraniere writes in The Times. Chief among the insights: Mr. Craig appears to have pulled strings to get Mr. Manafort’s daughter a job at Mr. Craig’s powerful law firm after she had already received a rejection letter.

Even more on the Amazon. Yesterday, I wrote about the wildfires in the Amazon. In The Atlantic, Peter Brannen provides a helpful corrective to some misunderstandings about the rain forest’s limited role in producing the world’s oxygen.

This article is part of David Leonhardt’s newsletter. David is on a break until Labor Day. While he’s away, two outside writers are taking his place. This week’s author is Quinta Jurecic (@qjurecic), the managing editor of Lawfare. You can sign up here to receive David’s newsletter each weekday.